SIMMONS v. SIMMONS

HEAD, Justice.

On December 4, 1950, Mrs. Lucille Simmons brought a petition seeking an attachment for contempt against John S. Simmons for failure to comply with a judgment rendered at the September term, 1944, of Washington Superior Court, awarding permanent alimony to the plaintiff and their minor child in the sum of $16,000, payable $100 monthly. The defendant filed an answer, in which he alleged that he had in good faith exhausted all the resources at his command and had made a diligent and bona fide effort to comply with the order of the court issued at the September term, 1944, but had been unable to do so; that he had paid $50 on his December installment, and he was not then able to pay any more on that installment.

At the hearing it appeared that, on November 25, 1950, the defendant had been adjudged in contempt for failure to pay alimony, and had been permitted to purge himself of contempt by the payment of $200. A. W. Smith, Sheriff of Washington County, testified that he had loaned the defendant $100 to complete the $200 payment, so that the defendant would not have to go to jail. He stated that the defendant had not repaid the $100 to him.

The material portion of the defendant's testimony was as follows: "I do not own the sawmill that I am operating. It is in my [present] wife's name, but Luke Warren owns it — she owes him about $3300 on it, as well as I remember. She paid about $4325, or something like that for the sawmill. She has been paying him for it at a dollar a thousand, as sawed. I saw timber for Herbert Jackson now. Like the weather is now, bad, I saw around 20 or 22 thousand feet of timber a week. I work 17 hands at my sawmill and pay them 75c an hour or $6 a day if they work eight hours. It costs about $500 a week to operate the sawmill for labor, and then the trucks have to have gas and oil. I have to have fuel for the tractor and the mill. . . I do not own any property. I have made diligent and bona fide effort to pay the amount adjudged by the court in 1944, and as long as I am able to work, my child is going to have part of what I make. As to whether I am able to pay any more on the December alimony, well, I haven't been able to pay what I borrowed to pay the alimony with. . . I borrowed from the sheriff, and I also owe Mr. Jackson what I borrowed from him. I had to borrow $140 of the $200 that I was held in contempt of court for, and I had to borrow the $50 that I paid in December. As to whether I could keep on borrowing money to pay this alimony, well I don't think people would keep loaning me the money if I didn't pay them back. [On cross-examination.] The sawmill is in my wife's name; it has been in her name ever since it was bought from Luke Warren about 3 years ago. All the equipment is hers. . . I am shown on my wife's books as an employee. I am listed on the top of every sheet as foreman. Social security is paid on me sometimes and sometimes it hasn't because I haven't had the money. . . Timber is bringing around 25 or 30 dollars a thousand feet. I get paid now 27 dollars a thousand for logging and sawing the timber. I have a truck there to haul hands with, you (attorney Evans) loaned me the money to buy it so as to keep the finance company from taking it back. I don't have any other trucks there. My brother hauls the lumber for me. There is not an automobile at my house. It is sitting out there, it is a `50 Ford, it sold for somewhere between 14 and 15 hundred dollars. Monthly payments on car is $102. My wife is gainfully employed. I think she makes about 75c an hour. I don't know. She works out there through the week and runs that little store on the week end. The store ain't mine. She borrowed the money from the bank of Tennille to build the store with and still owes the bank. As to whether or not we have had to live in the house, well, it is too cold to stay otherwise than in the house. Her brother-in-law built the house, she furnished the money. She borrowed the money from Tom Brett to build it with. . . I don't know exactly what my living expenses are. It is how you live, as to how much your expenses are, I would imagine they are about $20 a week, there are 4 persons in my whole family. . . [Redirect examination.] This sawmill was bought by my wife. If I was able to buy all the equipment, I would have bought it myself and not have gotten her into all this mess. My wife makes about $120 a month. If I am not mistaken they got a raise to 85c per hour. . . My wife takes her money that she works for and spends it on the house and the payments. . . This automobile that we were talking about, it belongs to her. . . She pays the payments on it. . . I don't have any property that I could mortgage or sell that I could pay this alimony."

The record shows a statement by the trial judge at the conclusion of the hearing, in part as follows: "I don't know why the defendant is not in position to pay now as well as he was when he agreed to pay when this agreement was made, and there has been no evidence of bad health or anything to incapacitate the defendant, but from the evidence I am not convicted [sic] that he is able to pay a hundred dollars a month. He can't go on borrowing if that is the way he has to pay it. I am going to judge the defendant in contempt though."

On December 22, 1950, the trial judge passed an order adjudging the defendant in contempt of court, with the right to purge himself of contempt by paying to the plaintiff the sum of $109, on or before January 1, 1951. The exception is to that order.